According to the provisions of China's patent law, the patent right for inventions and utility models should be novel, creative and practical.
1. Novelty means that before the filing date, no identical invention or utility model has been published in publications at home and abroad, or has been publicly used at home and abroad, or has been shown to the public in other ways and is known to the public. At the same time, no identical invention or utility model has been applied to the patent administration department of the State Council by others and recorded in the patent application documents published after the application date. According to Article 24 of the Patent Law of People's Republic of China (PRC), "An invention-creation applying for a patent shall not lose its novelty in any of the following circumstances within six months before the date of filing:
(1) was exhibited for the first time in an international exhibition hosted or recognized by China municipal government;
(2) It was first published at a designated academic conference or technical conference;
(3) others disclose their contents without the consent of the 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.
3. Practicality means that the invention or utility model can be manufactured and used, and can produce positive effects. The granting of a patent right for a design shall conform to the fact that it is not the same as or similar to the design publicly published in domestic and foreign publications or publicly used at home and abroad before the application date, and shall not conflict with the lawful rights and interests previously obtained by others.
Second, what are the circumstances in which the patent right is not granted?
According to the patent law, an invention can be patented as long as it has the necessary conditions for obtaining a patent. However, in order to protect the interests of the state, society and the public and promote the development of the national economy, China's patent law has made exceptions for some topics that cannot be patented according to the characteristics of patent protection and the development of China's economy and technology. China's patent law stipulates that the following items shall not be granted patent rights:
1, scientific discovery. Scientific discovery is an unprecedented scientific understanding of natural laws and the characteristics of natural phenomena that help to explain natural laws. However, scientific discovery is only an understanding of natural laws, not an invention made by using natural laws. Can not be directly applied to production practice, does not have industrial practicability, so no patent right is granted.
2. Rules and methods of intellectual activities. Intellectual activity refers to people's thinking activity, which originates from people's thinking and produces abstract results through reasoning, analysis and judgment, or it can indirectly act on nature through people's thinking movement as a medium to produce results. It only guides people to think, identify, judge and remember the information expressed, and it does not use technical means, nor follows the laws of nature, and does not have the characteristics of technology, so it cannot be granted a patent right.
3. Diagnosis and treatment of diseases. The diagnosis and treatment of diseases refers to the process of identifying, determining or eliminating the causes or pathological changes of living people or animals. Considering that doctors' duty is to heal the wounded and rescue the dying, doctors should have the freedom to choose various methods in the process of diagnosing and treating diseases; On the other hand, the diagnosis and treatment of diseases are directly based on living human or animal bodies, which cannot be used in industry and is not practical. They are not inventions in the sense of patent law, so such methods cannot be patented.
4. Animal and plant varieties. Animal and plant varieties refer to the animal and plant varieties themselves, excluding the methods of producing them. The production methods mentioned here refer to non-biological methods, mainly excluding biological methods for producing animals and plants. Whether a method belongs to a "biological-based method" depends on the degree of intervention of artificial technology in the method. If the intervention of artificial technology plays a major control or decisive role in the purpose or effect to be achieved by this method, then this method does not belong to "mainly biological method" and can be granted a patent right.
5. Substances obtained by nuclear transformation. Because the substances obtained from nuclear transformation can be used for military purposes, the patent law stipulates that patent rights shall not be granted for the vital interests of the country. It should be pointed out that not only the substance obtained by nuclear transformation method can not obtain patent protection, but also the nuclear transformation method itself can not obtain patent protection.