The inventiveness of the invention means that compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress.
The invention has outstanding substantive characteristics, which means that the invention is not obvious to the technicians in the technical field. If on the basis of the existing technology, the invention can be obtained only through logical analysis, reasoning or limited experiments, then the invention is obvious and does not have outstanding substantive characteristics.
According to the provisions of the Examination Guide, judging whether the claimed invention is obvious relative to the existing technology can usually be carried out through the following three steps:
(1) Determine the closest existing technology as the basis for judging whether the invention has outstanding substantive features.
(2) Determine the salient features of the invention and the technical problems actually solved by the invention. The distinguishing features of the claimed invention compared with the closest prior art are analyzed, and then the technical problems actually solved by the invention are determined according to the technical effects that can be achieved by the distinguishing features. In principle, any technical effect of the invention can be used as the basis for re-determining technical problems, as long as the technical personnel in the field can know the technical effect from the contents recorded in the application specification.
(3) It is necessary to determine whether the claimed invention is obvious to the technicians in this field ... In the process of judgment, it is necessary to determine whether there is some technical enlightenment in the existing technology as a whole, that is, whether the above distinctive features are given in the existing technology to solve its existing technical problems (that is, the technical problems actually solved by the invention), which will give the technicians in this field the motivation to improve the closest existing technology and obtain the protected invention when faced with technical problems. If there is such technical revelation in the prior art, the invention is obvious and does not have outstanding substantive features.
1. The distinguishing feature is common sense, for example, the usual means to solve the redefined technical problems in this field, or the technical means to solve the redefined technical problems disclosed in textbooks or reference books.
2. The distinguishing feature refers to the technical means related to the closest existing technology, such as the technical means disclosed in other parts of the same comparison document, and the function of this technical means in other parts is the same as that of distinguishing feature in the claimed invention to solve the re-determined technical problems.
3. The distinguishing feature is the relevant technical means disclosed in another comparison document, and the role of this technical means in this comparison document is the same as that of the distinguishing feature in the claimed invention in solving the re-determined technical problems.
In the procedure of invalidation or substantive examination, the third case is the most controversial. The concept of "motivation" is mentioned in the above provisions of the Review Guide, that is, the enlightenment given by the existing technology will make the technicians in the field "motivated" to improve the recent existing technology and obtain the invention of the claim when faced with technical problems. This makes the judgment of whether there is technological enlightenment complicated. When the above-mentioned third situation occurs, for example, the second comparison document discloses the distinguishing features, but the technical field of the second comparison document is far from the technical field of the invention, can it be considered as "motivated" at this time? This needs further discussion.