1. Introduction According to the first paragraph of Article 22 of the Patent Law, inventions and utility models that have been granted patent rights should be novel, creative and practical. Therefore, the creativity of the invention and utility model for which a patent is applied is one of the necessary conditions for granting a patent right. This chapter only provides for creative examination of inventions.
2. The concept of inventiveness refers to that the invention has outstanding substantive characteristics and remarkable progress compared with the existing technology.
2. 1 prior art
The existing technology mentioned in Paragraph 3 of Article 22 of the Patent Law refers to the existing technology defined in Paragraph 5 of Article 22 of the Patent Law and Section 2. 1 of Chapter III of this Part.
The contents mentioned in the second paragraph of Article 22 of the Patent Law, which were filed with the Patent Office by any unit or individual before the filing date and recorded in the patent application documents or published patent documents after the filing date, do not belong to the prior art, so they will not be considered when evaluating the invention creativity.
2.2 Outstanding substantive features
The invention has outstanding substantive characteristics, which means that the invention is not obvious to the technicians in the technical field. If on the basis of the existing technology, the invention can be obtained only through logical analysis, reasoning or limited experiments, then the invention is obvious and does not have outstanding substantive characteristics.
2.3 Significant progress
The invention has made remarkable progress, which means that compared with the prior art, the invention can produce beneficial technical effects. For example, the invention overcomes the shortcomings and deficiencies existing in the prior art, or provides a technical scheme with different ideas for solving technical problems, or represents a new technical development trend.
2.4 technical personnel in the technical field
Whether the invention is creative or not should be evaluated on the basis of the knowledge and ability of technicians in their technical fields. A technician in a technical field, also known as a technician in this field, refers to a hypothetical "person", assuming that he knows all the general technical knowledge of the technical field to which the invention belongs before the application date or priority date, can know all the existing technologies in this field, and has the ability to apply conventional experimental means before that date, but he does not have the ability to create. If the technical problems to be solved can prompt the technicians in this field to look for technical means in other technical fields, then they should also have the ability to understand the relevant existing technologies, general technical knowledge and conventional experimental means before the filing date or priority date from other technical fields.
The purpose of setting this concept is to unify the examination standards and try to avoid the influence of examiners' subjective factors.
3. Review of invention and creativity
Whether an application for a patent for invention is creative or not can only be considered if the invention is novel.
3. 1 audit principle
According to the third paragraph of Article 22 of the Patent Law, it shall be examined whether the invention is creative, has outstanding substantive features and has made remarkable progress.
When evaluating whether an invention is creative, the examiner should not only consider the technical scheme of the invention itself, but also consider the technical field to which the invention belongs, the technical problems solved and the technical effects produced, and treat the invention as a whole.
Different from the principle of "individual comparison" of novelty (see paragraph 3. 1 in Chapter III of this part), when examining creativity, one or more different technical contents in the existing technology are combined to evaluate the invention to be protected.
If the independent claim is creative, the creativity of the dependent claims of the independent claim shall not be examined.
3.2 Review benchmarks
The evaluation of the creativity of an invention shall be based on the third paragraph of Article 22 of the Patent Law. In order to help to correctly grasp this benchmark, the following respectively introduce the general judgment methods that highlight substantive characteristics and the judgment standards that make significant progress.
3.2. 1 judgment highlighting substantive features
Judging whether an invention has outstanding substantive features means judging whether the claimed invention is obvious to those skilled in the field.
If the claimed invention is obvious relative to the prior art, it does not have outstanding substantive features; On the contrary, if the comparison results show that the claimed invention is not obvious compared with the prior art, the invention has outstanding substantive characteristics.
3.2. Judgment method of1.1
Judging whether the present invention is obvious relative to the prior art can generally be carried out according to the following three steps.
Determine the closest prior art.
The closest prior art refers to the technical scheme that is most closely related to the claimed invention in the prior art, and is the basis for judging whether the invention has outstanding substantive characteristics. The closest prior art may be, for example, the prior art which is the same as the technical field of the claimed invention, has the closest technical problem, technical effect or use and/or discloses most technical features of the invention, or the prior art which can realize the functions of the invention and disclose most technical features of the invention, although it is different from the technical field of the claimed invention.
It should be noted that when determining the closest existing technology, the existing technologies with the same or similar technical fields should be considered first.
(2) Determine the salient features of the invention and the technical problems actually solved by the invention.
The technical problems actually solved by the invention should be objectively analyzed and determined in the review. Therefore, we should first analyze the distinguishing features of the claimed invention compared with the closest existing technology, and then determine the technical problems actually solved by the invention according to the technical effects that can be achieved by the distinguishing features. In this sense, the technical problem actually solved by the invention refers to the technical task of improving the closest existing technology to obtain better technical effects.
In the review process, the closest existing technology determined by the examiner may be different from the existing technology described by the applicant in the specification, so the technical problems actually solved by the invention re-determined based on the closest existing technology may be different from those described in the specification; In this case, the technical problems actually solved by the invention should be re-determined according to the closest existing technology identified by the examiner.
The re-determined technical problems may depend on the specific situation of each invention. In principle, any technical effect of the invention can be used as the basis for re-determining technical problems, as long as the technical personnel in the field can know the technical effect from the contents recorded in the application specification.
(3) Judge whether the claimed invention is obvious to the technical personnel in this field.
In this step, it is necessary to judge whether the claimed invention is obvious to those skilled in the art from the closest prior art and the technical problems actually solved by the invention. In the process of judgment, it is necessary to determine whether there is some technical enlightenment in the existing technology as a whole, that is, whether the above-mentioned distinguishing features are given in the existing technology to solve its existing technical problems (that is, the technical problems actually solved by the invention), which will give the technicians in this field the motivation to improve the closest existing technology and obtain the protected invention when faced with technical problems. If there is such technical revelation in the prior art, the invention is obvious and does not have outstanding substantive features.
In the following cases, it is generally believed that the above technical enlightenment exists in the prior art:
(a) the salient feature is common sense, for example, the usual means to solve the redefined technical problems in this field, or the technical means to solve the redefined technical problems disclosed in textbooks or reference books.
(1) If the new use only uses the known properties of known materials, the invention of this use is not creative, and the change of its function and use is foreseeable, so the invention is not creative.