1. Historically, creativity comes from novelty.
At the beginning of the establishment of the patent system, an invention can be patented as long as it is novel. However, people gradually realize that this practice of only considering novelty has disadvantages, which not only leads to some schemes that are not technically advanced or even technologically backward being granted patents, but also induces unfair competition, that is, other people's inventions are only formal changes to meet the requirements of novelty, so as to seek new patents and compete with the original inventors in the market, which violates the original intention of legislation. In order to overcome this drawback of the patent system, patent laws in various countries have introduced creative standards one after another. The principle of non-obviousness in Article 103 of the United States Patent Law was updated in 1952 and revised in 1984 and 1995. The purpose of this article is that if the patented invention technology is different from the existing technology, the whole invention will be obvious to ordinary technicians in related fields at the time of invention. From 1790, the United States promulgated the first patent law. Up to now, the conditions of patent authorization have been revised many times, which reflects that in the past 100 years, the judges of American courts have carried out rich practice and in-depth exploration on what kind of inventions can be patented and how to judge them in practice, and formed their own theories, which eventually rose to law.
2. From the legal point of view, creativity and novelty are interlinked in jurisprudence.
It can be said that creativity is implicit novelty, and novelty is explicit creativity. In order to realize the balance and justice in the distribution of benefits, the patent law aims to prevent patents from being granted to technical solutions that already exist in the public domain obviously or implicitly, thus harming the public interest, or to grant patents by slightly changing the form of others' patents, thus harming the interests of the original patentee.
3. From the existing technology, the existing technology is different.
Novelty and creativity are related to the existing technology, but there are obvious differences between them. First, the technical field. Novelty examines the essence of existing technology as a whole, involving the whole technical field. It focuses on whether there is substantial identity between existing technology and invention. Creativity only involves related and similar technical fields, and the focus is whether the problems between existing technology and invention are obvious; Second, comparative method. Judging novelty can only be compared separately, and the cited technical scheme is a complete technical scheme. Judging creativity allows different existing technologies to be combined and compared. The cited technical solutions can be more than two technical solutions, or not complete technical solutions, but only fragments of technical information. nine
4. Subjective and objective, with different emphases.
Novelty judgment is a separate comparison, so its judgment is more objective. No matter who judges it, its conclusions will generally be basically the same. Creativity, on the other hand, is not an objective standard that can be measured by scales or rulers. This kind of judgment is subjective and requires people to use their brains to think. If he was surprised, he said to himself, "I never thought of such a technical scheme, and the inventor is really a smart man", which reached the non-obvious standard.
5. Different degrees and performances.
The novel difference is objective, emphasizing unprecedented. However, the creative difference requires that the difference between the patented invention and the existing technology must be the result of creative conception. This result must be something that ordinary people dare not think of easily. That is: differences are not counted, but differences arising from differences are counted. The difference of novelty is reflected in technical characteristics, while creativity requires non-obviousness in technical characteristics or technical effects, that is to say, the difference of creativity is reflected in both technical characteristics and technical effects.
6. From the procedural point of view, creativity is to further limit patentable inventions on the basis of novelty.
Creativity is creativity based on novelty. The invention is creative and of course novel. As Ricky, one of the most respected judges in the United States, said, any inventor who wants to obtain an American patent must go through the first door (the subject of desirable patent right), the second door (the condition of desirable patent right-novelty) and the third door (the condition of desirable patent right-non-obviousness) in turn.