According to the first paragraph of Article 22 of the Patent Law, inventions and utility models that are granted patent rights should be novel, creative and practical. Therefore, the novelty of the invention and utility model for which a patent is applied is one of the necessary conditions for granting a patent right.
novel
Refers to the invention or utility model does not belong to the prior art; Before the filing date, no unit or individual filed an application with the Patent Office for the same invention or utility model, and it was recorded in the patent application documents published or announced after the filing date (including the filing date).
Current technology
According to the fifth paragraph of Article 22 of the Patent Law, existing technology refers to the technology known to the public at home and abroad before the filing date. Existing technologies include technologies that have been publicly published in domestic and foreign publications, publicly used at home and abroad or known to the public in other ways before the filing date (the priority date shall prevail if there is priority).
The existing technology should be the technical content that the public can know before the application date. In other words, the existing technology should be available to the public before the application date, and it should contain contents that can enable the public to learn substantive technical knowledge from it.
It should be noted that the confidential technical content does not belong to the prior art. The so-called confidential state includes not only the situation that is bound by confidentiality laws or agreements, but also the situation that is considered to have the obligation of confidentiality in social concepts or business habits, that is, the situation of implied confidentiality.
However, if the person with confidentiality obligation violates the regulations, agreements or tacit understanding, which leads to the disclosure of technical contents and makes the public know these technologies, these technologies also constitute a part of the existing technologies.
limited time
The term of the existing technology is the date of application, and the priority date refers to the priority date. Broadly speaking, the technical content disclosed before the filing date belongs to the existing technology, but the technical content disclosed on the filing date is not included in the existing technology.
Open mode
In the prior art, there are three ways of publicity, including publication publicity, use publicity and other ways of publicity, all of which have no geographical restrictions.
Publication publicity
A publication in the sense of the patent law refers to an independent communication carrier that records the contents of a technology or design, and shall indicate or have other evidence to prove the time of its public publication or publication.
Publications that meet the above meanings can be printed and printed paper, such as patent documents, scientific magazines, scientific books, academic papers, professional documents, textbooks, technical manuals, officially published meeting minutes or technical reports, newspapers, product samples, product catalogues, advertising manuals, etc. , it can also be audio-visual materials produced by means of electricity, light, magnetism and photography. Such as microfilm, film and photographic film.
Publications are not limited by geographical location, language or acquisition method, nor by age. It doesn't matter how many publications have been published, whether anyone has read them or whether the applicant knows them.
Printed with "internal information" and "internal distribution"
Publications marked with ""are indeed published within a specific scope and need to be kept confidential, so they are not public publications. The printing date of a publication shall be regarded as the date of publication, unless there is other evidence to prove its date of publication. If the printing date only indicates the year, month and year, the last day of the written month or 65438+February 3 1 of the written year shall be the date of publicity. If the examiner thinks that the date of publication is in doubt, he can request publication.
The author of the version provided proof.
Use propaganda
Because of the use, the technical scheme is open, or the technical scheme is in a state that the public can know. This kind of disclosure is called use disclosure. The ways of using publicity include manufacturing, using, selling, importing, exchanging, giving, demonstrating and exhibiting, which can make the public know its technical content. As long as the relevant technical content is in a state that the public can know if they want to know in the above way, it constitutes open use, and it does not depend on whether the public knows it or not. However, a product display that does not explain the technical content, so that technicians in the technical field cannot know its structure and function or material composition, does not belong to public use.
If the product is disclosed, even if the product or device used needs to be destroyed to know its structure and function, it still belongs to the public. In addition, the purpose of publicity also includes information and visual materials that can be read by the public on the booth and in the window, such as posters, drawings, photos, samples, samples, etc.
The use of publicity is a day when the public can learn about products or methods.