Invention belongs to technical concept, while the invention protected by patent law belongs to legal concept, so the object of patent right must have the characteristics of invention and creation and the adaptability of law.
Not all inventions can be patented, nor can illegal inventions, scientific discoveries, rules and methods of intellectual activities, methods of diagnosis and treatment of diseases, animal and plant varieties, substances obtained by nuclear transformation, and logo graphic designs.
Invention refers to a new technical scheme proposed for a product, method or its improvement. An invention must be a technical scheme, the result of the inventor's application and combination of natural laws in a specific technical field, not the natural laws themselves, so scientific discovery does not belong to the category of invention. At the same time, inventions are usually intellectual achievements in the natural sciences, and achievements in the fields of literature, art and social sciences cannot constitute inventions in the sense of patent law.
According to the laws of our country, inventions can be divided into three types: product inventions, method inventions and improved inventions. Product invention is about the invention of new products or new substances. This kind of product or substance has never been seen in nature, and it is the result of people using natural laws to act on specific things. If an article is completely in a natural state and exists without anyone's processing or transformation, it is not a product invention as stipulated in China's patent law and cannot obtain a patent right. Method invention refers to the invention of methods and steps to solve specific technical problems. China's current patent law extends the scope of protection of method inventions to products directly obtained by this method. It is worth noting that the method of pure abstract thinking does not belong to the method invention in the sense of patent law. An improved invention is a technical scheme with substantial innovation on the existing product invention or method invention. Different from the above two inventions, the improved invention is only a major improvement on the existing product invention or method invention, which is highly dependent on the previous technological achievements.
Utility model refers to a new technical scheme suitable for practical use for the shape, structure or combination of products.
The utility model patent only protects the product. Products should be manufactured by industrial methods and occupy a certain space.
All related methods (including the use of products) and natural objects that have not been artificially manufactured are not protected by utility model patents. The above methods include manufacturing methods, using methods, communication methods, processing methods, computer programs and using products for specific purposes. For example, the manufacturing method of a gear, the dust removal method in the workshop, the data processing method, the naturally occurring rain flower stone and so on. Can't be protected by utility model patent.
Gaseous, liquid, powdery, granular substances or materials, which have no definite shape, cannot be used as the shape characteristics of utility model products.
Appearance design, also known as industrial product appearance design, refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or their combination of products and the combination of color, shape and pattern.
The carrier of design must be the product. Product refers to any article produced by industrial methods. Handicrafts, agricultural products, livestock products and natural objects that cannot be produced repeatedly cannot be used as the carrier of design. Usually, the color of a product can't form a design independently unless the color change of the product itself has formed a pattern. The combinations that can constitute the design are: the shape of the product; The style of the product; The shape and pattern of the product; The shape, pattern and color of the product.
patent law of the people's republic of china
Article 2 Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Invention refers to a new technical scheme proposed for a product, method or its improvement.
Utility model refers to a new practical technical scheme for the shape, structure or combination of products.
Appearance design refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of colors, shapes and patterns.
Article 5 No patent right shall be granted for inventions and creations that violate laws, social ethics or harm public interests.
No patent right shall be granted to inventions and creations obtained or utilized in violation of laws and administrative regulations and completed by relying on genetic resources.
Article 25 No patent right shall be granted to the following projects:
(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) Nuclear transformation methods and substances obtained by nuclear transformation methods;
(six) the design of the pattern, color or the combination of the two.
The production method of the products listed in Item (4) of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law.