1. Timely
Freshness is always associated with a certain El period. Novelty patent technology becomes existing technology once it is made public. With the passage of time, today's novel patented technology will become tomorrow's existing technology, because society is progressing, knowledge is developing and technological innovation is endless. Most countries take the filing date of patent application (Japan takes the filing date of patent application as the standard for judging novelty).
2. Regionality
Novelty is always associated with a specific region. This is because the evaluation of whether the patented technology is open is always carried out within a specific geographical scope. Corresponding to the public way according to the existing technology, it can be divided into world public and domestic public, and the novelty standard can also be divided into world public and domestic public, which embodies the regional characteristics. For example, according to the standard of novelty in China, a technology is considered new as long as it is not available in China's existing technology.
3. Direct differences
Patents are different from the existing technology, so patents can be granted. Because the patent is the same as the existing technology, it does not contribute to the existing technology, nor does it enrich the existing knowledge system, which violates the original intention of legislation.
In the practice of judging patent novelty in China, whether the patent technology is the same as the existing technology is judged by the principle of overall identity (that is, considering the four aspects of "technical field, technical problem, technical scheme and technical effect", the principle of universal coverage (that is, whether the technical scheme disclosed by the existing technology covers the technical scheme claimed in the patent application) and the usual means of direct substitution judgment.
Whether to judge the direct difference between patent and existing technology in patent novelty judgment or patent creativity judgment can be discussed. In China's patent practice, according to the examination standard of novelty judgment put forward in the Examination Guide, in the process of novelty judgment, the judgment of directly replacing the usual means should be made. The direct substitution of conventional means also shows the obvious invention, so it belongs to the category of creative judgment.
The conventional direct substitution means in novelty judgment means that the only difference between the technical scheme of an invention or utility model and the prior art is that a technical feature in the prior art scheme is replaced by a well-known technical means with the same function, such as replacing rivets with bolts and replacing motors with hydraulic motors.
In practice, in the Patent Reexamination Board's decisionNo. 1 190 for examining the request for invalidation, it is considered that belt drive and chain drive belong to the direct substitution of customary means, and "in the mechanical field, they are two mutually substitutable transmission modes and their advantages and disadvantages are well known", and it is emphasized that the direct substitution of customary means has well-known characteristics.
The Patent Reexamination Board's decisionNo. 182 for examining the request for invalidation holds that "the function and structure of the crawler plate and the chain plate in the two schemes are the same, so they are essentially the same and do not have novelty". In other words, the above two technical exchanges should be judged from the perspective of whether the function and structure are essentially the same.
Therefore, when the essence of a patent is different from the existing technology, or there is a big difference, of course, it is judged by the patent creativity standard. When the patent is directly different from the existing technology, or the difference is small, it is judged by directly replacing novelty and customary means. The exact boundary between direct difference and substantive difference cannot be clearly defined by law, but can only be decided by the examiner at his discretion. This discretion is the same for the final result of patent application. Because, in the examination, for the direct difference, the examiner can directly replace the usual means to reject the patent application, or reject the patent application without directly replacing the usual means, but it is still not creative.
The reason why idiomatic means should be directly replaced in novelty judgment instead of directly replacing idiomatic means in the category of patent creative judgment, some scholars believe that there may be obvious technical equivalence between the technical scheme required by the first published application document and the technical scheme required by the application submitted on the filing date when considering conflicting applications. Its purpose and effect are exactly the same, and if the technical scheme applied for at the filing date is creatively judged, there is no existing technology that can make it lose its creativity. Therefore, in order to avoid granting two patents for the same invention or utility model in this case, the provision of directly replacing customary means is introduced in the novelty judgment benchmark in the review guide.
technicalization
In the international patent classification, the subject of patent application is classified according to the function or application of technology. Patents must be technical novelty, not theoretical novelty. In general, the applicant for invention has no obligation to explain the application theory of his invention. He only needs to explain how the invention is applied, that is, how others copy his invention to ensure that the invention can enrich the practical technical system.
Step 5 publicize
Openness requires that the contents of novelty be clearly stated in the patent application documents, that is, clearly described in legal words in the claims. For example, the independent claim of the patent document records the necessary technical features that must be adopted in order to achieve the purpose of the invention, and the technical scheme formed by the sum of these necessary technical features is substantially different or different from other technical schemes in the prior art, including novelty. If a technical feature is disclosed in the specification, but not stated in the claims, it is considered that the technical feature has been deliberately abandoned and contributed to the public, thus becoming a part of the existing technology. At the same time, this publicity provides a reliable legal guarantee for the competition of patented technology and becomes a favorable weapon to safeguard patent rights. It also makes patents have distinctive legal characteristics.
6. Objectivity
Novelty is an objective standard, which has nothing to do with the applicant's point of view. It doesn't matter whether the applicant knows the existing technology. The applicant thinks his invention is new, but if it is not new in fact, then he can't get a patent right. At the same time, the objectivity of patent novelty is also reflected in the technology of patent application disclosure, including both the contents clearly recorded in the words (attached drawings) in patent documents and the technical contents clearly inferred by technicians. Interchangeable parts known in the art, that is, technically equivalent contents, should also be included in the scope of this disclosure.