Two. To grant a conditional invention-creation to obtain a patent right, the substantive and formal conditions must be met. Substantive conditions refer to the attribute requirements that an invention-creation applying for a patent must have, which can be divided into positive conditions and negative conditions. Formal conditions refer to the requirements of application documents and procedures for patent application for invention-creation. The conditions for granting a patent right mentioned here only refer to the substantive conditions for granting a patent right. Positive condition invention or utility model
(1) Novelty and novelty refers to the fact that the same invention or utility model has not been publicly published in domestic and foreign publications, publicly used in China or known to the public in other ways before the filing date. The same invention or utility model has not been applied to the Patent Office by others, and it is recorded in the patent application documents published after the application date. The invention or utility model for which a patent is applied must meet the standards of novelty, must be different from the existing technology, and there shall be no conflicting applications. 1. prior art. The existing technology is the technology that has been published before the filing date. There are three ways of technology disclosure: CD, photographic film, etc. The public disclosure of technical information refers to the disclosure of technical content by unspecified relevant public who does not undertake confidentiality obligations. The degree of disclosure shall be subject to the implementation of ordinary technicians in the field. 2. Conflict with the application. Conflict application refers to the invention or utility model for which a patent is applied. Before the filing date, the same invention or utility model has been filed with the Patent Office by others and recorded in the patent application documents published after the filing date of the invention or utility model. Apply first and then apply. Contradictions with the application will destroy novelty and prevent patent duplication. It is not considered as the loss of novelty. The invention, utility model and design for which a patent is applied shall not lose its novelty in any of the following circumstances within 6 months before the date of application:
(2) Creativity means that compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress. The invention or utility model for which a patent is applied must be substantially different from the existing technology before the filing date in the composition of the technical scheme, and must be the result of creative thinking activities, rather than the result that the existing technology can naturally obtain through simple analysis, induction and reasoning. Invention is more creative than utility model. Creative judgment is based on the knowledge and judgment ability of ordinary technicians in their respective fields.
(3) Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. It has two meanings: first, the technology can be manufactured or used in industry. Industry includes industry, agriculture, forestry, aquaculture, animal husbandry, transportation and service industry. Industrial manufacturing and utilization refers to feasibility and reproducibility. Second, it must be able to produce positive effects, that is, compared with the existing technology, the invention or utility model for which a patent is applied can produce better economic or social benefits, such as increasing the number of products, improving the quality of products, increasing the functions of products, saving energy or resources, preventing and controlling environmental pollution, etc.
(four) other conditions, such as the specification needs to fully disclose the technology for which the patent is applied. Please refer to the latest patent law and implementation rules for details. design patent
(1) The novelty of the design for which the patent right has been granted shall be different from or not similar to the design that has been published in domestic and foreign publications or publicly used in China before the date of application. Design must be attached to specific products, so "difference" not only refers to the difference of design itself in shape, pattern, color or their combination, but also includes the difference of products adopting the design scheme. "Inconsistency" requires that the patented design cannot be a simple imitation or slight change of the shape, pattern, color or their combination of the existing design. Approximate design includes the following situations: the shape, pattern and color are similar, and the products are the same; The shapes, patterns and colors are the same, and the products are similar; The shape, pattern and color are similar, and the products are similar.
(2) Practicality The patented design must be suitable for industrial application. This requires that the design itself and the product as a carrier can be replicated repeatedly in an industrialized way, that is, it can be mass-produced in industry.
(3) The patented design must have aesthetic feeling. Aesthetic feeling refers to the pleasant feeling of design from visual perception, which is not necessarily related to the advanced functions of products. Aesthetic design plays an important role in expanding product sales.
(4) It shall not conflict with the legal rights previously obtained by others. The prior rights here include trademark right, copyright, enterprise name right, portrait right and the right to use the unique packaging and decoration of well-known goods. "Prior acquisition" refers to the acquisition before the application date or priority date of the design.
(5) For other conditions, please refer to the latest Patent Law and detailed rules for implementation. Negative condition: 1. Inventions and creations that violate laws, social ethics or harm public interests. National laws refer to laws formulated and promulgated by the National People's Congress or the NPC Standing Committee in accordance with legislative procedures. Excluding administrative regulations and rules. If the purpose of the invention itself violates the laws of the state, the patent right cannot be granted. Such as equipment, machines or tools for gambling; Drug abuse equipment, etc. Can't be patented. The purpose of the invention itself does not violate national laws, but those that violate national laws due to abuse do not belong to this category. 2. Scientific discovery. It refers to the revelation of objective phenomena, changing processes, characteristics and laws in nature. Scientific theory is a summary of the understanding of nature and a broader discovery. All belong to the extension of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from the technical scheme to transform the objective world, and do not belong to inventions in the sense of patent law, so patent rights cannot be granted. 3. Rules and methods of intellectual activities. Intellectual activity refers to human thinking movement, which originates from human thinking and produces abstract results through reasoning, analysis and judgment, or indirectly acts on nature through human thinking movement as a medium to produce results. It is only the rules and methods to guide people to think, identify, judge and remember information. Because no technical means or laws of nature are used, and no technical problems are solved and technical effects are produced, it does not constitute a technical scheme. Such as traffic rules, grammar of various languages, fast algorithm or oral decision-making, psychological test methods, rules and methods of various games and entertainment, music scores, recipes, chess manuals, computer programs themselves, etc. 4. Diagnosis and treatment of diseases. It is a process of identifying, determining or eliminating the cause and focus with living people or animals as the direct implementation object. The exclusion of the diagnosis and treatment of diseases from the scope of patent protection is due to humanitarian considerations and social and ethical reasons. Doctors should have the freedom to choose various methods and conditions in the process of diagnosis and treatment. In addition, this method directly takes the living human body or animal body as the implementation object, which is theoretically considered not to belong to the industry, can not be used in the industry, and does not belong to the invention in the sense of patent law. For example, pulse diagnosis, psychotherapy, massage, various immune methods to prevent diseases, cosmetic or weight loss treatment, etc. However, drugs or medical equipment can be patented. 5. Species of animals and plants. However, patents may be granted for the production methods of animal and plant varieties in accordance with this Law. 6. Substances obtained by nuclear transformation. 7. Patterns are mainly used to mark the patterns, colors or the combination of the two.
Legal basis: Article 25 of the Patent Law stipulates that no patent right shall be granted for the following matters:
(1) scientific discoveries;
(2) rules and methods of intellectual activities;
(3) Methods of diagnosis and treatment of diseases;
(4) Species of animals and plants;
(5) substances obtained by nuclear transformation;
(six) the design of the pattern, color or the combination of the two. For the first item of the preceding paragraph
The production method of the products listed in Item (4) may be granted a patent right in accordance with the provisions of this Law.